R. v. H.O., 2019 ONCJ 957

ONTARIO COURT OF JUSTICE CITATION: R. v. H.O., 2019 ONCJ 957 DATE: August 7, 2019 Central East Region (Oshawa) BETWEEN: HER MAJESTY THE QUEEN — AND — H.O. [1] Before Justice F. Javed Heard on April 23, 24, 25, 2019 Reasons for Judgment rendered: August 7, 2019 F. Stephens ....................................................................................... counsel for the Crown C. Claxton ................................................................................... counsel for the defendant F. Javed J.: REASONS FOR JUDGMENT A. INTRODUCTION [ 1 ] H.O., (“the defendant”), was arraigned on a seven-count information alleging the following offences contrary to the Criminal Code : (

i) Count 1: sexual assault, s.271; (ii) Count 2: sexual interference, s.151; (iii) Count 3: invitation to sexual touching, s.152; (iv) Count 4: exposing genital organs, s.173(2); (

v) Count 5: accessing child pornography, s.163.1; (vi) Count 6: communicating with a person under 16 for purpose of facilitating the commission of an offence under s.151 (sexual interference), contrary to s.172.1(2); and (vii) Count 7: communicating with a person under 16 for purpose of facilitating the commission of an offence under s. 163.1 (child pornography), contrary to s.172.1(2). [ 2 ] The Crown proceeded by

summary conviction. [ 3 ] Mr. Stephens conceded the evidence did not establish the guilt of the defendant on count 5 (accessing child pornography) and count 7 (communicating with a minor to commit the child pornography offence). Accordingly, those two counts will be dismissed, leaving counts 1, 2, 3, 4 and 6. [ 4 ] The alleged offences spanned a time frame of April 1 – May 3, 2018. The defendant was 19 years old, while the complainant, M.S. was 13. M.S. claims the defendant engaged in sexual touching and sexual communication with her over social media. The

allegations involve instances of “making out” which the Crown says is prolonged kissing constituting a sexual act and touching herbreasts. She also claimed the defendant invited her to commit a sexual act (a “hand-job” and “blowjob”) and finally sent her sexualizedcontent over a telecommunication device specifically, a picture of his exposed penis over Snapchat and two indecent videos. Finally, healso asked and received a sexualized picture of her. [5] The Crown called M.S. and her older sister, whose full name shares the same initials as M.S. For this reason, I will refer to hersister in these reasons as “Ms.

S”. The Crown also called her two friends, B.F. and Q.G. both of whom were under 18 years old. Indeed,all Crown witnesses were under 18 and testified via closed circuit television (CCTV) and with the assistance of a support worker. [6] The defendant testified, denying the allegations. [7] The defence position is that the defendant’s denial in the context of the evidence as a whole is capable of raising a reasonabledoubt. Alternatively, the Crown’s evidence didn’t meet the high burden of proof as the witnesses were unreliable about the timeline ofthe events and colluded with each other. Ms.

Claxton argued M.S. had an intense crush on an older boy and made up the allegations toavoid getting in trouble with her family. [8] The Crown’s position is that the court should reject the defendant's evidence based on the substance of his account, which Mr.Stephens says should leave the court with no room for reasonable doubt. In the alternative, Mr. Stephens argued the court should thecourt find there were no substantive problems with the defendant’s evidence, the court should still reject the defendant’s evidence basedon a reasoned acceptance of the truth of M.S.'s evidence beyond a reasonable doubt: R. v.

J.J.R.D., (ON CA), [2006]O.J. No. 4749 (Ont. C.A.). [9] This is case involving adolescents or “pre-teens” where the use of social media is rampant. After the criminal allegationssurfaced, there was chatter over social media among the witnesses. The court was alive to concerns of receiving hearsay, which isinadmissible unless it falls within an exception or admitted based on the principled exception. Counsel were alive to this issue as welland navigated through the evidence with some reception of hearsay into the record but clarified the purpose for which it was beingoffered.

The court made brief rulings during the trial if the evidence was inadmissible. The court was assisted in ensuring the purpose ofthe evidence was clear through written submissions. I am grateful to the parties for written submissions and reviewed them carefully inarriving at a verdict. The Videotaped Statements: s.715.1 of the Criminal Code [10] Before I assess the evidence, I will briefly to explain my approach to the evidence in this case. The investigation, prosecution anddefence of sexual offences involving children is challenging for all parties in the criminal justice system.

The law has responded to thischallenge by enacting provisions in the Criminal Code which assist witnesses in giving a full and fair account.

Section 715.1 of the Codepermits a court to admit as evidence, a video recording made within a reasonable amount of time after the alleged offence in which thevictim or witness describes the acts complained of and if the victim or witness, while testifying, adopts the contents of the videorecording. The video statement is admitted unless the presiding judge or justice is of the opinion that admission of the video recording inevidence would interfere with the proper administration of justice. The admissibility inquiry is governed through a voir dire.

See R. v.C.C.F., (SCC), [1997] 3 S.C.R. 1183, at paras. 35-41. [11] In this case, Mr. Stephens appropriately resorted to s.715.1 of the Code to present the evidence of all witnesses who were under18 years of age. The witnesses also gave brief evidence viva voce and were extensively cross-examined. Ms. Claxton waived therequirement of a formal voir dire. Despite this concession, I heard evidence from each witness, and was satisfied the hurdles in 715.1were met. I admitted the videotaped statements as exhibits on the trial but also took the step of admitting transcripts of the evidence.

I didso for the following reasons. [12] In cases where evidence is admitted under s.715.1 of the Code, all justice system participants share a duty to ensure the sameevidentiary rigour is applied to this evidence as it would be in a courtroom setting. In my view, this shared responsibility begins with thepolice. In this case, the police interviews were conducted by Detective McConnell, a 16 year veteran of the Durham Regional PoliceService. Det. McConnell did not testify at the trial. After carefully reviewing the interviews, it’s clear he took his role seriously. Heconducted fulsome and professional interviews.

However, as discussed with counsel, the court was concerned that sometimes, he elicitedevidence from the interviewee, which would otherwise be inadmissible in a courtroom. For example, on one occasion, he explained thelaw to a witness. Respectfully, this approach should be avoided. I have no doubt he may have done so inadvertently, perhaps to make thewitness comfortable, but it may impact the quality of the evidence. Here, I have kept this in mind when assessing how much weight Igave to the videotaped interviews.

As I will explain, nothing turned on it in this case. [13] Crown and defence counsel also share this duty. Because the videotaped statement along with any other evidence of the witnessbecomes part of the trial record, sometimes Crown counsel have to take the step of editing the statement to expunge any inadmissible evidence, whether it’sirrelevant or caught by an exclusionary rule. For example, in the interview of M.S., the police elicited what is arguably bad characterevidence when the police asked M.S. if the defendant engaged in this kind of conduct with any of her friends.

A prosecutor would not beable to ask this question in the courtroom absent an application and a ruling. That said, I can understand why a police officer would askthis question to further their law enforcement objectives. Accordingly, the filtering of evidence is done outside the courtroom to admit asanitized version of the statement. There was no editing done in this case, nor a request to edit, which isn’t meant as a criticism becausethe parties were at idem that the court should simply disabuse its mind of any inadmissible content when assessing the evidence.

Whilethis can be achieved in a judge alone trial, it would not be an option if the trier of fact involved a jury. The quality of the evidence shouldnot suffer based on the mode of trial. In this case, the quality of the admitted evidence did not suffer because I was careful in onlyrelying on admissible evidence. I instructed myself in accordance with the principles in R. v. Toten (1993), (ON CA),83 C.C.C. (3d) 5 (Ont. C.A.).

[14] Finally, a court shares this duty as well because the Code vests the court with the residual discretion to not admit the videotapedevidence if its probative value is exceeded by its prejudicial effect: R. v. D.O.L., (SCC), [1993] S.C.J. No. 72; R. v. F.C., (SCC), [1997] 3 S.C.R. 1183; R. v. Scott (1993), (ON CA), 87 C.C.C. (3d) 327 (Ont. C.A.). In thiscase, there was no such request (nor do I think the circumstances justified a request to not admit the statements) but as a safeguard, I tookthe step of admitting the transcripts to wean out any inadmissible evidence.

I was satisfied the transcriptions were accurate aftercomparing them to the videotaped statements. As a judge sitting alone, I disabused my mind of any inadmissible evidence. I was assistedby the offer of written submissions, which I accepted. A defendant in a criminal trial is not entitled to a perfect trial, but a fair trial. I amsatisfied the defendant received a fair trial. At the end of the day, I can accept some, all or none of the evidence presented and determinehow much weight the evidence deserves, if it is admitted: R. v. Zimunya, 2013 ONCA 265 para. 4.

I have kept this in mind as Iconsidered the evidence from the videotaped statements. To be clear, I have disabused my mind of the content on pages 39-50 in theinterview of M.S., and other material sprinkled throughout the police interviews of the Crown witnesses. B. THE LEGAL PRINCIPLES Reasonable Doubt [15] The law requires me to approach the question of guilt or innocence by asking three questions as set out by the Supreme Court inD.W. v. the Queen, (SCC), [1991] 1 S.C.R. 742: (

i) If I believe the defendant’s evidence then I should find him not guilty; (ii) If I do not accept his evidence, I must still ask myself if his testimony considered in light of all the evidence leaves me in a stateof reasonable doubt.

If it does, then I must find him not guilty; (iii) Even I do not the defendant’s evidence and his testimony does not leave me in a state of reasonable doubt, I must still askwhether based on the evidence that I do accept, whether the Crown has proven his guilt beyond a reasonable doubt. [16] Moreover, the W.D. doctrine also applies to the evidence presented by the Crown that is favorable to the defendant: R. v. D.(B.),2011 ONCA 51, at para. 114. In the final analysis, if after a careful consideration of all the evidence, I am unable to decide whom tobelieve, I must acquit: R. v.

S. (J.H.), 2008 SCC 30. [17] Reasonable doubt is a matter of common sense and human experience and must be grounded in the evidence. There was no onuson the defendant to prove his innocence. The burden of proof remains with the Crown. I must consider whether the defendant’s denial inthe context of the evidence as a whole is capable of raising a reasonable doubt about his guilt. While the Crown does not have toconvince me of the defendant’s guilt to an absolute certainty, proof of probable or likely guilty is not enough: R v. Lifchus (1997), (SCC), 118 C.C.C. (3d) 1 para. 27 and R. v. Starr, 2000 SCC 40 para 242.

Credibility [18] In assessing the conflicting accounts, I do not have to believe or accept the defendant's evidence completely or comprehensivelyin order to have a reasonable doubt: R. v. Minuskin, (ON CA), [2003] O.J. No. 5253, at para. 22. (Ont. C.A.) [19] Credibility and reliability are related concepts but are legally distinct. When I assess the credibility of a witness, I am determiningwhether the witness is being honest. When I assess the reliability of a witness, I am examining the ability of the witness to observe,recall and recount the events in issue. The Evidence of Children [20] Ms.

Claxton submits the evidence of the Crown witnesses suffered from a faulty timeline of events and some inconsistencies.Respectfully, I am not persuaded by this submission given the circumstances of this case. Three of four Crown witnesses in this casewere 13-14 years old, which the law treats as children for purposes of s.16.1 of the Canada Evidence Act. Ms. Claxton did not challengethe capacity of these witnesses to testify. The law requires a court to take a specific approach to the assessment of the evidence ofchildren. In R. v. B. (G.) (No. 2), (SCC), [1990] 2 S.C.R. 30 and R. v.

W. (R.), (SCC), [1992] 2 S.C.R.122, the Supreme Court explained this approach by making two important points. First, the law does not treat the evidence of childrenwith special caution and second, the law provides that it would be wrong to apply adult tests for credibility to the evidence of children.When it comes to flaws and contradictions in the evidence, the Supreme Court instructed at paras. 54-55 “a flaw, such as a contradictionin a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. ....

While children may not beable to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they havemisconceived what happened to them and who did it”. [21] I have also instructed myself based on the comments of Finlayson J.A. (as he was) in R. v. Stewart, (ON CA),[1994] O.J. No. 811 (Ont. C.A.) who explained the above two judgments: 20 ...Wilson J. [in B. (G.)] advocates a common sense approach when dealing with the testimony of young children and advises judgesnot to impose the same exacting standards upon them as upon adults.

Wilson J. emphasizes that the courts should continue to carefullyassess the credibility of child witnesses and she does not suggest that the standard of proof beyond a reasonable doubt should cease toapply in criminal cases in which young children have been victimized... 21 As I understand these two judgments, we must assess witnesses of tender years for what they are, children, and not adults. We shouldnot expect them as witnesses to perform in the same manner as adults. This does not mean, however, that we should subject the

testimony of children to a lower level of scrutiny for reliability that we do adults... [22] Moreover, in W.(R), supra, at para. 26, the Supreme Court reminded that the presence of inconsistencies, particularly as toperipheral matters such as time and location should be considered in context of the age of the witness at the time of the events to whichs/he is testifying. More generally, inconsistencies on minor matters of detail are to be expected and don’t generally affect the credibilityof the witness.

However, where the inconsistency involves a material matter in which an honest witness is unlikely to be mistaken, theinconsistency “can demonstrate a carelessness with the truth”: R. v. M.G., (ON CA), [1994] O.J. No. 2086 at para. 23. Sexual Assault, Sexual Interference & Invitation to Sexual Touching [23] Counts 1, 2 and 3 all involve offences involving a “sexual” connotation but the offences have different elements of the offencesthat must be proven by the Crown beyond a reasonable doubt.

In particular, the offence of sexual assault is a general intent offencewhereas counts 2 and 3 are specific intent offences. [24] Count 1 involves an allegation of sexual assault. The Crown submits the defendant should be found guilty for “making out” withM.S., which the Crown describes as deep and prolonged kissing as opposed to, for example, a peck which may not constitute touchingfor a sexual purpose. The defence submits the court should accept the denial of the defendant or alternatively be left in doubt based on ashaky timeline of the events as recalled by the Crown witnesses. Ms.

Claxton also argued in her written submissions, there was no “useof force”. [25] In R. v. Marshall, 2017 ONCA, 810, the Court of Appeal discussed the offence of sexual assault at paras. 51-53: [51] Sexual assault is an assault that is committed “in circumstances of a sexual nature, such that the sexual integrity of the victim isviolated”: R. v. Chase, (SCC), [1987] 2 S.C.R. 293, at p. 302. [52] The actus reus of sexual assault is established by the proof of three elements: (

i) a touching, (ii) the sexual nature of the touching,and (iii) the absence of consent: R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 25. The sexual nature of theassault is determined objectively by examining the nature and quality of the act. The court must ask itself, “viewed in the light of all thecircumstances, is the sexual or carnal context of the assault visible to a reasonable observer?”: Chase, at p. 302.

The circumstances to beconsidered include the part of the body touched, the nature of the contact, the situation in which it occurred, and the words and gesturesaccompanying the act. [53] The Crown need not prove that the accused had any specific mens rea with respect to the sexual nature of his or her behaviour. Afinding of sexual assault does not require proof of an improper or ulterior purpose: R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60,at para. 36.

The intent or purpose of the person committing the act may be a factor in considering whether the conduct was sexual, but isonly one factor to be considered in the analysis: Chase, at p. 302. [26] Count 2 is the offence of sexual interference. It states: 151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of thebody of a person under the age of fourteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding tenyears or is guilty of an offence punishable on

summary conviction. Unlike the offence of sexual assault, the offence of sexual interference does not contain an element of consent as part of the actus reuswhich must be proven by the Crown: R. v. A.B., 2015 ONCA. This offence is designed to protect the sexual integrity of young persons intheir interactions with adults. In this case, the defendant was an adult at the time of the alleged offences, albeit a young adult, forpurposes of the law. The actus reus for sexual interference is the direct or indirect touching of a young person.

The mens rea for theoffence is the specific intention to touch for a sexual purpose. It is not a general intent offence like sexual assault. [27] The Crown submits the act of going under the shirt of M.S. and placing his hand on her breast constitutes sexual interference andthe defendant’s intention can be inferred from the surrounding circumstances that it was done for a sexual purpose. The defence makes asimilar submission that the defendant’s denial should raise a doubt in light of a shaky timeline of events. [28] Count 3 is the offence of invitation to sexual touching. It states: 152.

Every person, who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly orindirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsel orincites and the body of the person under the age of 16 years. This offence is similar to sexual interference in that it requires proof of the act, which is inviting, counseling or inciting a person under16 to commit the sexual act with the specific intention or mens rea that it is being done for a sexual purpose.

The Crown submits the actof requesting a “hand-job” and a “blowjob” which is commonly known as oral sex over Snapchat makes out the offence. The defenceposition is that the defendant’s denial of not having any electronic contact with M.S. is credible and should raise a doubt. [29] Counts 4 and 6 involve offences, which are commonly known as luring and indecent exposure. The elements of these offencesare more discrete and will be discussed below. C.

THE EVIDENCE [30] While there are several contested facts as they relate to the specific criminal allegations before the court, there is little or nocontroversy about some background facts. I will summarize the accounts below highlighting these facts to give some context to thecredibility evaluation which will follow. Account of the Defendant

(

i) Overview [31] The defendant was 19 years old at the time of the alleged incidents but 20 years old at the time of testifying. He testified hesuffered a concussion in his youth, which resulted in some pain, memory loss and brain damage. Counsel did not raise the issue of fitnessnor did it manifest in the courtroom. Of course, I have kept this factor in mind when considering the reliability of his account. Overall,the defendant presented with a calm demeanor while testifying, especially in the face of a probing cross-examination by Mr.

Stephens. (ii) The Criminal Record [32] The defendant admitted he had a finding of guilt in 2016. A court is permitted to consider a person’s criminal background, whichmay impact on a credibility assessment: R. v. Corbett, (SCC), [1988] 1 S.C.R. 670 at para. 21. I have not used thisfinding of guilt to engage in propensity type reasoning which is not permitted. (iii) The Relationship Between the Parties [33] The defendant testified he knew Ms. S, the sister of M.S. for 4 years. He recalled giving her his phone number 6 years ago,which I don’t view as a material inconsistency.

They used to text each other, “the odd time, maybe 1-2 times” before his arrest. Ms. Swas dating his friend B.S., so he would see her in person on the odd occasion as well. B.S. did not testify in the proceedings. Thedefendant said there was no “bad blood” between himself and Ms. S. or M.S. or any of her friends. Nobody said or did anything negativetowards him. Evidence of motive or animus is not an element of the offence that must be proven by the Crown. It is circumstantialevidence and where it exists, it can assist a credibility evaluation. The Crown did not argue there was an absence of proven motive.

Ms.Claxton argued M.S. had a motive to lie to prevent getting in trouble with her family. I will review this submission below. [34] The defendant said he knew B.F. as M.S.’s friend but claimed he never met Q.G. in person until he saw her in the courtroom.This conflicts with their evidence who both said they went for a car ride with the defendant. (iv) The Snapchat Account [35] The defendant testified he had a Snapchat account for 4 about years. I heard some evidence about the Snapchat applicationincluding that it allows one to send digital content to another Snapchat user.

The receiver can view the content, which gets deleted fromthe device once viewed unless it’s saved in some manner. The defendant said his Snapchat identification (“Snapchat ID”) was“Hunter_123123”. He got rid of Snapchat as a result of these allegations and never created or deleted another account. [36] M.S. testified the defendant had a Snapchat ID but gave a slightly different ID. In her police interview she said it was“Hunter12312H” but in the courtroom she said it was “Hunter12321H”.

Apart from the oral testimony, no other evidence was lead onthis issue but mindful that the defendant doesn’t have to prove anything, I accept his evidence which means M.S. was incorrect.However, also mindful of the Supreme Court’s direction on the evidence of children, I don’t view this as a material inconsistency. Theimportant point is she confirmed he had a Snapchat ID and simply got the identification numbers mixed up. [37] The defendant explained how one acquires a different person’s Snapchat ID.

He said one would have to share their Snapchat IDor somebody could “hack” into the program and send pictures on one’s behalf. In this case, he testified he never gave M.S., B.F. or Q.G.his Snapchat ID but could not rule out of if somebody else did. He also denied using Snapchat to have any communication with anywitness in this case but did use Snapchat to communicate with his girlfriend. I find that the defendant at the relevant time was a aSnapchat user. This is not a case where the evidence is he didn’t have a Snapchat account, didn’t know how to use it and didn’t know itslimitations.

He appeared to be pretty tech savvy and have a good understanding of the application. In cross-examination he said he was“pretty sure he did not give M.S. his Snapchat ID”. This conflicts with the evidence of M.S. who said they communicated over Snapchat. [38] Prior to his arrest, the defendant had an iPhone 6, which I know to be a smartphone from Apple Inc. He said his phone numberwas (289) 926-9799. The device was used for a few years before it was confiscated by the police after his arrest. He testified he neverdeleted any other social media accounts prior to his arrest. (

v) The Meeting with M.S. [39] The defendant testified in examination in chief that on some date in April, 2018, he recalled making a plan over text messagewith Ms. S to go for a drive. He stated Ms. S told him she was babysitting her sister, M.S. and her friend B.F., and they would beaccompanying her for the drive. The defendant was driving a silver Honda Civic. Around 7-8 pm, he pulled up to the front of herapartment in Cannington, in the township of Brock. The apartment was located near a LCBO, which I know to be a liquor store. Ms. S,her sister M.S. and B.F. exited the apartment and entered his vehicle. Ms.

S sat in the front passenger seat while M.S, and B.F. sat in theback seat. He stated he didn’t know the name M.S. who introduced herself, as did B.F. [40] The defendant stated the group went for a drive that lasted about an hour. During the commute, there was no “bad blood” oranything unusual that happened. In cross-examination and for the first time, the defendant testified M.S. asked him how many people hehad slept with. He provided a response, which M.S. followed up with a comment: ‘if she could be the next’. He told her “no as she wastoo young’. He said both Ms.

S who was still in the front seat and B.F. remained quiet during this exchange. He added afterwards he toldpeople he didn’t know if M.S. was serious or joking. Ultimately, he dropped off M.S. and B.F. but Ms. S stayed in the car for another 30minutes or so. He said Ms. S didn’t bring up her sister’s comment to him and nor did he. The Crown witnesses never testified to thisexchange during the car ride. [41] There is no dispute in the evidence that the defendant knew M.S. was 13 years old during this car ride because he said heoverheard Ms. S and M.S. talking about her age.

In the car ride, the two were talking about going home as it was too late for M.S. to stayout. It was not something he learned after the fact. M.S. confirmed the defendant knew her age but not because of the car ride, ratherbecause he asked her directly during their Snapchat conversation which the defendant denies.

[42] The defendant added that at some point after the car ride, he saw M.S. at a friend’s house where she began to stare and scream athim. He hasn’t seen or been alone with her since. (vi) The Denials of Sexual Activity [43] The defendant categorically denied the allegations and any facts surrounding the following details: (

i) being alone with M.S., (ii)being with M.S. in the company of Q.G. or B.F., (iii) engaging in any social media conversation with M.S. or her friends, (iv) kissing,touching or hugging M.S. on any occasion, (

v) asking M.S. for photos of her “private parts” (vi) sending M.S. photos and or videos ofhimself and (vii) telling M.S. that her age (13 years old) didn’t bother him. (vii) The Arrest [44] The defendant testified he was at work when he received a voice mail message from the police asking if he could attend at thepolice station to “talk about what happened between M.S. and Ms. S”. He confirmed he had “a lot of time” before learning about thepolice request and attending at the station. In re-examination, he confirmed that the police didn’t provide any details over the phone andhe didn’t know he would be arrested.

Mr. Stephens submits this presented a window of opportunity for the defendant to think about hisencounter with M.S. and come up with an exculpatory explanation. Respectfully, I disagree. I find there’s no evidence of fabrication,which of course is different from rejecting one’s evidence, which I will have concluded, I must. Account of M.S. & Crown witnesses (

i) Overview [45] M.S. was 13 years old at the time of the alleged incidents but 14 at the time of testifying. She was interviewed by Det.McConnell on May 9, 2018 and adopted the contents of her videotaped statement under s.715.1 of the Code. I found M.S. to be a matureand confident witness. She was cross-examined extensively on timelines and dates and provided fair responses such as “I can’t be sure”.This is sensible because the events are dated but this doesn’t make her account incredible.

I am reminded that while the demeanor orimpression of a witness is one factor in evaluating credibility, it is an unreliable indicator in the accuracy of one’s evidence: R. v. R.D.S., (SCC), [1997] 3 S.C.R. 484 at para. 128-129. [46] In

summary, M.S. testified she met the defendant on five occasions over a span of a few weeks. The first meeting was in thecompany of her older sister and B.G. She said nothing happened between the parties, including there was no conversation with thedefendant apart from a hello. The second and third meetings were in the company of her friend, B.G. The fourth meeting was in thecompany of her friend Q.G. Both incidents involved some hugging and kissing. The fifth and final meeting was alone with the defendantand involved touching of her breast. [47] Ms.

Claxton submits the evidence of the Crown witnesses was not credible or reliable because it did not have any “confirmeddates” or “believable timelines” and should be a reason to reject their evidence as incredible. [48] Respectfully, I disagree with the defence submission. In my view, the evidence of M.S. was clear, compelling and confirmed onimportant points. Viewed in context of her age and background, I am not troubled by some deviation on dates.

In my view, when herevidence was assessed based on significant events (the five meetings) as opposed to when these events took place, her evidence was notonly reliable but credible. (ii) The First Meeting [49] The submission about a faulty timeline must be considered in context. During the police interview, M.S. was asked to recall theevents based on days of the week as opposed to specific dates. Ms. Claxton quite appropriately took a different approach with theassistance of a calendar (Exhibit 4) to confirm the exact dates relative to a significant event such as the date of her interview.

I find M.S.was a little confused about the dates even with this reference point but this is not a reason to reject all of her evidence. As stated above,the important point is what happened during the meetings. There would be no reason to recall specific dates but there would be a reasonto recall specific events. M.S. agreed in cross-examination she met the defendant for the first car ride on April 25, 2018. She told thepolice the first meeting was on a Wednesday. According to Exhibit 4, she was consistent.

I find this was the date of the first meeting. [50] She explained that the defendant picked up her sister, herself and B.F. at a Foodland, near her residence in Cannington. Thegroup went for a drive in the defendant’s car, which she described as a Honda Civic. She said nothing happened with the defendant onthis occasion. This was the first time she met the defendant in person. [51] M.S. was cross-examined on when this meeting took place but not on what happened in the car according to the version testifiedto by the defendant. The failure to confront witnesses can run afoul of the rule in Browne v.

Dunn (1893), 1893 CanLII 65 (FOREP), 6R. 67 (H.L.); R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, leave to appeal refused, [2016] S.C.C.A. No. 203. The law also permitsa court to draw an adverse inference against the defendant’s evidence for the limited purpose of assessing his credibility: R. v. N.L.P.,2013 ONCA 773, 305 C.C.C. (3d) 105, at paras. 74-77. As I will explain below, the parties did not object on this basis, nor was the issueargued in their written submissions.

In fairness and without subjecting the defence to a higher level of scrutiny, I have chosen to not drawan adverse inference against the defendant but I have used it in a different (and permissible) manner to evaluate his credibility. (iii) The “Crush” and Snapchat Contact [52] M.S. testified after the car ride, she developed a “strong crush” on the defendant. She was not shy about her emotions, tellingboth her older sister, Ms. S. and B.F. although she told B.F. before her sister, who she knew would be upset. In cross-examination, sheadmitted she didn’t want her parents to know she had a crush on an older boy.

She was also asked if she knew her sister, Ms. S also likedthe defendant. She said no and added her sister never told her this even though she knew her sister knew the defendant from before. Ifind there is no evidence that Ms. S “liked” the defendant. Ms. S never testified to this nor was confronted with this question duringcross-examination. It is trite that a question is not evidence, only the answers are. Here, there is no air of reality to a possible argument

that M.S. made up the allegation because she was “jealous” of her older sister. [ 53 ] M.S.’s evidence was confirmed by Ms. S who said she knew the defendant “pretty well” and used to hang out with him until “things got weird”. She knew him to be 19 years old. She said her sister M.S. confirmed her crush on the defendant and disclosed to her certain details, which cannot be used as confirming or bolstering her evidence but can be used to confirm the reliability of her account in terms of the timeline of events. This is so as the defence submits the faulty timeline is a reason to reject the Crown’s evidence.

In the end, Ms. S said she never saw any physical contact or electronic communication between the defendant and her sister. [ 54 ] M.S. testified after the car ride, she searched for the defendant on Instagram, which I know is a social media application and also sent him a request on Snapchat. Shortly thereafter, they began a “streak” which she explained is akin to a text conversation over Snapchat. She stated they communicated for 3-4 days and he asked her to hang out on a Thursday night.

In the courtroom, she said the next meeting was 2 days after the first meeting which I don’t view as a material inconsistency because she was clear where this meeting took place (Foodland) and what happened during this meeting. (iv) The Second Meeting at Foodland [ 55 ] M.S. explained she had planned to have B.F. sleep over on a Thursday night. The defendant asked her to hang out and she agreed. She testified the defendant picked her and B.F. up and they went for a drive. She stated after the drive, they parked the car and he may have kissed her but she couldn’t be sure. (

v) The Third Meeting in Beaverton [ 56 ] Later in the same evening, she met with the defendant and B.F. again in Beaverton. She explained after the initial meeting, they were dropped off at Foodland. She had planned to visit her father in Beaverton later in the day. Her older sister drove her and B.F. to Beaverton and by this point she had already planned to meet the defendant again. She stated she lied to her parents that she was going to see her friend, Q.G. but in fact, she was going to see the defendant. When she arrived in Beaverton, the defendant picked her and B.F. up at the CIBC bank.

It was around 10:30 pm and they drove around. On this occasion, he both hugged and kissed her. According to her and prior to this pick up, the defendant asked if he could hug her and she said yes. [ 57 ] B.F. confirmed material aspects of this account. She testified she had planned a sleepover with M.S. and part of the plan was to go to Beaverton. The defendant picked them up from Foodland. In cross-examination she was challenged on any contact between M.S. and the defendant and gave a detailed answer.

She said the defendant got out of his car, M.S. wrapped her legs around his waist and they “started to kiss a lot”. “I stood there and looked away”. She said it lasted 1-1.5 minutes. I believe this and find it amounts to “making out”. After they were dropped off, she was careful in saying she “thought” the defendant hugged and kissed her. They hung out until midnight when the defendant dropped her and B.F. home. Importantly, B.F. recalled M.S. lied to her parents and told them she was hanging out with her friends S and J, which is not the same as the evidence of M.S. who used Q.G. as the decoy.

Again, this is not a material inconsistency because the import of the evidence is a false plan aimed to get out of the house. [ 58 ] I accept the evidence of B.F. without hesitation. I found her to be a clear and forthright witness. I find that the defendant and M.S. hugged and kissed during the third meeting. I am not confident of any kissing during the second meeting. [ 59 ] M.S. testified she continued to communicate with the defendant over Snapchat and on occasion, iMessage, which is a text messaging application on an Apple device.

M.S. said she knew the defendant was 19 years old because he asked her if she was okay with his age and she said yes. She said she didn’t tell him she was 13 years old but he knew she was in Grade 8. Of course, this stands in contrast to the defendant’s evidence who spoke of the conversation in the car where he told her she was “too young” and his evidence he overheard her age while talking with her sister, Ms. S. Even with rejecting this evidence, it is a reasonable inference that Grade 8 would mean one is around 13 years old. I find as a fact the defendant knew she was 13 years old.

I agree with the Crown that there is no air of reality to any age-based consent defence given the 6 year gap in age. Nor did Ms. Claxton make submissions on this point. It simply did not arise in the evidence. The defence theory is the sexual contact never happened. (vi) The Fourth Meeting at Foodland [ 60 ] M.S. explained the day after the Beaverton meeting she saw the defendant again, this time with her other friend, Q.G. She testified the defendant picked them up at the Foodland near her house. She stated they kissed when he picked them up and they “made out” at the side of the road.

According to her, Q.G. remained in the car. [ 61 ] This account was also confirmed in material ways by Q.G. who I found to be a very credible witness. She gave careful and balanced answers. Q.G. was 16 years old at the time of testifying. She used to live next door to M.S. and was a close friend but the parties have since drifted apart. She testified she didn’t know the defendant but had seen pictures of him through M.S. She wasn’t asked to identify him in the courtroom but I’m satisfied she testified about the defendant and not somebody else.

She testified that on one occasion towards the end of April to early May, 2018, she went for a drive with the defendant and M.S. The parties met behind a grocery store, which I find was the Foodland. They went for a drive for about 3 hours. She was seated in the back of his car while M.S. sat in the front. During the commute, she overheard M.S. and the defendant talking but couldn’t recall the content. She stated she saw the defendant and M.S. kiss, which lasted 30 seconds to 1 minute. I believe this and find the two “made out”. She said the defendant also touched M.S. on her waist and shoulders.

I believe this as well. The interaction made her feel uncomfortable. (vii) The Fifth Meeting Alone [ 62 ] M.S. described a fifth and final meeting with the defendant before he was arrested. She explained after the fourth meeting, they were supposed to hang out again the following day but didn’t as the defendant went out with his friends. However, the following day, which she said was a Sunday, the defendant picked her up from the Foodland and they drove to the side of the road. On this occasion, the defendant asked her if she wanted to sit on his lap and if he could “go up her shirt”.

She said they began to make out and he placed his hand under her shirt and touched her “boob” under her bra.

[ 63 ] After this incident, she went home and was smiling. Ms. S saw the smile and asked her what happened. After Ms. S threatened to check her phone, she divulged the incidents with the defendant. Her sister subsequently told her mother the following day which she recalled was April 30 th . This evidence was confirmed by Ms. S.

On May 1 st , M.S. spoke to a police officer at her school and then provided a formal statement to the police on May 9 th . (viii) The Electronic Communication [ 64 ] M.S. testified on the Sunday prior to attending the police, the defendant texted her over Snapchat and asked if she wanted to give him a hand job and a blowjob. She responded “I don’t know” and told him she was scared. The defendant also asked if he could “stick it in a few times”, which I infer to be a proposition for sexual intercourse. She said “no”.

M.S. added that within the context of the request for a hand job, the defendant sent her two videos. The first involved him “jerking off”, while the other showed him “cuming” (sic) which I know is ejaculating. When asked how she knew they were from the defendant, she clarified that she while she didn’t see his face, the defendant had asked her if she wanted to see the videos and she agreed. And they came from his Snapchat ID. [ 65 ] M.S. testified she also sent him a picture of her on Snapchat in her bra, thong and tights, intending that only he would see it.

The defendant asked for “private pictures” of herself and she said no. D. ANALYSIS & FINDINGS [ 66 ] Cases involving credibility assessments are often challenging for courts. A court is not permitted to evaluate a he/said she said case as a credibility contest. In this case, while there is some he/she said between the parties on some counts, the Crown called additional witnesses, therefore the evidence of MS did not stand-alone on all counts. Mr. Stephens relied on the JJRD principle as one means to secure a conviction in this case.

In cases where this principle applies, it’s helpful to consider the strength of the Crown’s evidence as opposed to the weaknesses in the defence account. In JJRD , there were entries in a diary written by the young complainant that were found to be a key piece of evidence in coming to the decision in that case. The Court of Appeal said this evidence had a "credibility enhancing effect".

The First Prong of W.D. [ 67 ] For reasons that I will explain, I don’t think the JJRD principle applies in this case because I find there were reasons to reject the evidence of the defendant because of substantive problems with his account. When his denials of the offences are assessed against the evidence as a whole, they did not leave me with a reasonable doubt . After a careful assessment of the defendant’s evidence, I have rejected it for three core reasons: [ 68 ] First, I do not believe the defendant when he said he had a conversation with M.S. during the first car ride where Ms.

S and B.G. were present about her desire to have sex with him. The Crown witnesses were not confronted with this evidence but I did not draw an adverse inference against the defendant on this basis as he does not have to prove anything. I find the defendant was internally inconsistent as this evidence arose for the first time in cross-examination. He did not say this in examination in chief, which is a significant and fundamental omission.

It provides context to his relationship with M.S. and arose in cross-examination when he was being challenged on his interest in M.S. and on the fact that he knew she was too young. The defendant attempted to explain why he just recalled this alleged conversation for the first time. I find he was evasive on the issue. He said he thought about the conversation during the car ride, but then forgot about it only to remember it again after reflecting upon it. I’ve considered whether this explanation makes any sense in light of his “memory loss” and brain damage he suffered as a child but find it does not.

In other areas of his evidence including the events leading up to his meeting with the police and his explanation of how Snapchat works was very detailed and precise. This wasn’t an area of selective memory. I find the alleged conversation in the car with M.S. never took place and was said in an effort to distance himself from evidence that he showed an interest in M.S. and knew she was underage right from the outset. [ 69 ] Moreover, the alleged conversation is inconsistent with the evidence of M.S. and the other two occupants in the car, B.F. and Ms. S.

All witnesses said nothing happened during the car ride except some brief introductions. It is inconceivable that M.S. or the other witnesses would leave this out from both their videotaped statements and their courtroom testimony. I find they left it out not because they were inconsistent but because it never happened. In the case of Ms. S, she was surprised to know her younger sister showed an interest in the defendant, which she found out later that night, not in the car.

It defies logic and common sense that nobody in the car would hear this back and forth, which was uttered with M.S. in the back seat and him driving. Viewed in this context, this conversation was improbable and speaks against the defendant’s credibility. The law allows a trial judge to test the credibility and reliability of the account against when and where it took place to determine if it was implausible: R. v. R.H.A., [2000] OJ No. 2610 (CA) .

The failure of two people to completely and innocently miss this important conversation is simply implausible. [ 70 ] Second, the denials of the defendant on important points were contradicted in material ways by the Crown’s witnesses. He denied that M.S. was in the front seat of his vehicle which is flat out contradicted by both Q.G. and B.F. who both said they went for a car ride with him where M.S. sat in the front seat. I accept their evidence. Further, both witnesses said they saw him kissing her. I accept this as well.

Given the short time frame of the allegations, there’s no evidence before me that either was mistaken about the identity of the boy she kissed. [ 71 ] Third, I find the defendant was internally inconsistent in his evidence in another but important way. It’s clear that he had a Snapchat account and used Snapchat during the timeframe of the allegations as he did so with his girlfriend. While it’s conceivable that M.S. could have obtained details about his account from other sources, I believe her when she said she got his Snapchat ID from the defendant.

During cross-examination by the Crown, the defendant was adamant he had “ no contact” with M.S. after the first car ride but when asked if he gave her his Snapchat ID, his evidence was he was “pretty sure” he didn’t give it to her. These two answers are inconsistent. I find the defendant was evasive and inconsistent on this important point as he was trying to create distance between himself and M.S. [ 72 ] Applying the first prong of the W.D . test, I reject the defendant’s denials.

The Second and Third Prongs of W.D. [73] Moving to the second and third prongs of W.D., based on the evidence that I do accept, including parts of the first car ride, thedefendant’s evidence when considered as a whole does not leave me with a reasonable doubt. [74] In my view, this is a case where the defendant’s denials must be assessed in context of a strong Crown’s case where the accountof M.S. was confirmed by two witnesses on material points. B.F. and Q.G. were consistent on important points about where they werepicked up, by whom, where they went and how long the two car drives lasted.

While there was minor variation between their evidenceand M.S. about exactly what happened during the car rides, I have given the benefit of the doubt to the defendant about sending picturesof his exposed penis when his face was not exposed. I have also have a doubt that he kissed M.S. on one part of the second meeting withher. However, I find as a fact that he engaged in a long kiss (“made out”) with M.S. on two occasions. The first was when B.G. waspresent and the second was when Q.G. was present. Both witnesses were not challenged on their observations. [75] In cross-examination, M.S. told Ms.

Claxton that Det. McConnell suggested things happened to her that didn’t happen to her.M.S. agreed with this suggestion but later on also said in cross-examination she was pressured into giving a statement she didn’t want togive but not pressured into saying things didn’t happen. She clarified in reexamination if she was pressured to tell anybody thatsomething happened that didn’t happen. She said: “No, I didn’t tell them something that didn’t happen”. She also clarified that it was thesuggestion of sexual intercourse that didn’t happen which isn’t part of the Crown’s case against the defendant.

I accept her evidence,which allows me to find that M.S. did not invent the events. In R. v. Bartholomew, 2019 ONCA 377, the Ontario Court of Appealdiscussed evidence of motive, which is not an element of the offence. The Crown is not relying on motive to prove intent or identity inthis case. Ms. Claxton says M.S. was motivated to lie to not upset her parents. I don’t see any evidence of this on this record. There is noevidence of animus or hostility and no other circumstance that causes met to question the evidence of M.S.

In a criminal trial, there maybe many reasons for someone to accuse someone of a crime including no reason at all. I have not considered this factor in evaluating thecredibility of M.S. I have simply considered her evidence as a whole and most importantly, if the Crown has proven the allegationsbeyond a reasonable doubt. [76] Ms. Claxton submits the Crown’s witnesses colluded which is a basis to discredit their evidence. With respect, I disagree.

Apartfrom a finding of collusion, the law requires a court to look at all the circumstances to determine if there was any opportunity to colludeand the possibilities that these opportunities were used for this purpose: R. v. Burke, (SCC), [1996] 1 SCR 474 at para.45. I find there is no actual evidence of collusion. While there was a possibility to collude, the evidence doesn’t go further than gossip orinnocent chatter among young teens, which is expected.

Q.G. admitted speaking with M.S. before she spoke to the police and learningthe defendant’s age from M.S. but I fail to see how this undermines the probative value of her evidence that she was present for anoccasion where the parties were “making out”.

Indeed, she did not use the term making out and was careful in stating it was a long kiss.Q.G. had no reason to embellish because as she said in cross-examination, she had no reason to be concerned about anything thathappened during the car ride which leads to an inference she didn’t know the matter would fall in the hands of the police. [77] I make a similar finding as it relates to the evidence of B.F. While she was a friend of M.S., she too gave a balanced account.Importantly, she saw the defendant on the first three meetings and had a reliable opportunity to make observations and recall themcorrectly.

I don’t see her comment about getting a “bad vibe” from him as fixing her with a strong motive to lie or embellish. [78] In cross-examination, B.F. confirmed she wasn’t sure if she spoke with M.S. about the events involving the defendant beforegoing to the police but admitted she would have “gossiped” with her. In my view, this too is reasonable and to be expected with pre-teens.It would be unusual if something significant as an older boy showing a sexual interest in a friend would go unnoticed and without anydiscussion. That defies common sense.

Moreover, B.F. said while she knows Q.G., she did not speak with her about the events. I believeher. There is no basis to conclude the witnesses colluded because what M.S. told B.F. was to not tell anybody that the defendant told herthat he asked her to “suck his dick” which is the same as a blowjob. This wouldn’t be admissible as it’s hearsay but I find this was donebecause as M.S. said, she was scared about what she got herself into, not because she was trying to influence what B.F. would tell thepolice. [79] B.F. said she was told M.S. that the defendant went up her shirt.

This too is hearsay and cannot be used for its truth but it waselicited by the defence for a different purpose, namely the defence argument that there was a pattern of disclosure to her friends. To thisextent, the disclosure to B.F. can be used for reliability purposes but I haven’t used it for a credibility enhancing effect. In the end, theevidence about the touching of the breast largely stands alone from M.S. [80] M.S. testified the defendant sent her an image of his exposed penis over Snapchat. B.F. testified she too saw the same image. Theimage did not depict the person’s face.

M.S. said she believed it was the defendant because it was sent from his account. The defendantdenied sending such image and denied having pajamas with dark blue pajamas with monkeys. [81] Considering the evidence as a whole, including the evidence of the defendant that I accept including that somebody could “hack”into a Snapchat account, the evidence of an exposed penis of a white male is so general and non-descriptive that I can’t rule out theinference that somebody else sent this image to her.

While it is one inference it came from the defendant’s account, without any otherevidence, it is just an inference and insufficient to make a finding. In other words, while I reject the defendant’s evidence on this point,the evidence I do accept when considered as a whole, leaves me with a doubt that he sent her an image of his penis. Discussion of Specific Counts [82] I will now discuss the specific counts before the court. The information spans a timeframe of April 1, 2018 to May 3, 2018. Thisis the timeframe for all the allegations, which I find has been proven by the Crown.

M.S. was interviewed on May 3, 2018 and confirmedthe first meeting was on April 25, 2018. The remaining four meetings and exchange of sexual communication were between April 25and May 3, 2018. [83] Count 1 alleges a sexual assault. The sexual assault was not particularized, but nor did the defence seek particulars. Mr. Stephenssubmits the act of “making out”, when viewed in context, makes out a sexual act. I agree. Given the age of M.S., and the defendant at thetime, consent is not an element of the offence, nor a defence available to the defendant. I cannot find that any initial hugging and kissing

during the second meeting was

an act for a “sexual purpose”. However, I have no difficulty concluding that the two prolonged kissesmake out a sexual act. In the first one, her legs were wrapped around his waist, and in both, the kissing lasted for a while. These werenot just a quick and innocent peck that one might exchange with a loved one. It was much more and in the circumstances was a sexualact (see Chase, supra). Having rejected the defendant’s denials, the evidence as a whole proves this offence beyond a reasonable doubt. [84] Count 2 alleges sexual interference.

The information is not particularized but the Crown’s theory is that the act of touching her“boob” or breast under her shirt makes out the offence. I agree. Unlike sexual assault, this is a specific intent offence. I find thedefendant’s actions in touching the breast of M.S. under her bra was done for a sexual purpose because it was preceded with a requestthat she sit on his lap (a sexualized act). Having rejected the defendant’s denial, the evidence as a whole proves this offence beyond areasonable doubt. [85] Count 3 alleges the offence of invitation to sexual touching.

I find that the defendant invited or asked M.S. for a hand job and“blow job” which I know is oral sex. This would involve her touching his penis by either her hand or mouth which makes out the act.Moreover, I find the defendant intended for her to commit the act for a sexual purpose because of the surrounding circumstances. I agreewith the Crown that this was more than just “dirty talk”. For example, it was in the context of a sexualized conversation over Snapchatwith only her. It was not sent to a group.

It was accompanied with a request to “stick it in a few times” which I infer meant have sexualintercourse by inserting his penis into her vagina. Having rejected the defendant’s denial, the evidence as a whole proves this offencebeyond a reasonable doubt. [86] Ms. Claxton complains that there is no electronic communication to corroborate her account. The simple answer to thissubmission is that as a matter of law, sexual assault is not an area of the law where technical corroboration is required: F.H. v.McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 81.

A conviction can follow solely on the strength of sworn evidence. Here, noelectronic communication was preserved but this is because M.S. said she didn’t save it to her devices. She was seeing the defendanteffectively in secret from her family before she was caught. This explanation makes sense. This finding also speaks against any desire totrap the defendant because I draw the inference she did not want to get the defendant in trouble so there would be no reason to preservethe electronic communication.

The absence of electronic evidence is just another factor that gets added to the reasonable doubt calculus.As stated above, I find the Crown met this high burden with respect to the count 3. [87] Count 4 alleges that the defendant between April 1 to May 3, 2018 “did for a sexual purpose, expose his genital organs to aperson under the age of sixteen years (MS)”. The elements of the offence require the Crown to prove the act of exposing one’s genitalorgans. I reject the defendant’s denial that he didn’t send M.S. indecent videos.

I find he sent M.S. two indecent videos exposing hisgenitals and further this was on purpose, not by accident. In cross-examination M.S. acknowledged she did not see his [the defendant’s]face but I’m satisfied based on surrounding circumstances that it was the defendant who sent the videos because it was sent from hisSnapchat ID. These circumstances, including the preceding electronic communication were the reasons that prompted the defendant tosend the two videos. In her statement to the police, she said: MS: Um, well I never seen his face, I just .. he just asked if I wanted … DTM? What did he ask?

MS: Um, he said … well because I was… when he asked me if I wanna give him a hand job he was like telling me … well I was likeI’m scared, I don’t know how how, and he just said, um, do you wanna see a video and I just said [yeah] [88] M.S. explained the defendant sent her two indecent videos exposing his penis (genital organ). The first was of him “jerking off”and the second was of him “cuming” [sic], both of which I know is the act of masturbating. I draw the reasonable inference that for M.S.to be able to describe the above acts, his penis would be “exposed” constituting the act.

Again, the lack of physical videos doesn’t meanthe Crown can’t meet its burden of proof. The actus reus has been proven. [89] As for the mens rea, in R. v. Berhe, 2011 ONSC 6815 , [2011] O.J. No. 5142 (Ont. Sup. Ct), Justice Code explained thatthe word "purpose" has different meanings, depending on the context. It can mean "intention" but it can also mean "desire" in the senseof ultimate objective or goal: R. v. Hibbert (1995), (SCC), 99 C.C.C. (3d) 193 (S.C.C.). Justice Code also adopted thereasoning of the Court of Appeal in R. v. Sloan (1994), (ON CA), 89 CCC (3d) 97 (Ont.

C.A), as to the mens rea fromthe seminal case of R. v. Buzzanga and Durocher: There is, however, substantial support for the proposition that in the criminal law a person intends a particular consequence not onlywhen his conscious purpose is to bring it about, but also when he foresees that the consequence is certain or substantially certain to resultfrom his conduct: see Glanville Williams, Criminal Law, The General Part, 2nd ed. (1961), p. 38; Walter Wheeler Cook, Act, Intention,and Motive in the Criminal Law (1916-17), 26 Yale L.J. 645 at pp. 654-8; Rollin Perkins, A Rationale of Mens Rea, 52 Harv. L.

Rev.905 at pp. 910-1 (1938-39). Smith and Hogan, the learned authors of Criminal Law, 4th ed., state at p. 51, that the authorities referred to by them: ... suggest that in the criminal law generally, though not universally, a person intends a consequence if it is his purpose to achieve it or ifhe knows that the achievement of some other purpose is certain, or "morally" certain, to produce the consequence in question. ...

I agree, however (assuming without deciding that there may be cases in which intended consequences are confined to those which it isthe actor's conscious purpose to bring about), that, as a general rule, a person who foresees that a consequence is certain or substantiallycertain to result from

an act which he does in order to achieve some other purpose, intends that consequence. [Emphasis added.] 36 The same reasoning applies to the s. 173(2) offences. The accused was performing the act in the presence of the two children, whowere right in front of him, and he must have foreseen the certainty or substantial certainty that he would be seen. Whether they did see

him or not is legally irrelevant as it is the accused's intention that is in issue. There was evidence of an intent to "expose" himself to thechildren, in the dictionary sense of that word, as he took the substantially certain risk of allowing his penis to be seen. The trial judge wasentitled to find, on this record, that there was an intent to expose his genitals to the children. [90] I find that the defendant formed the requisite intention to commit the act of exposing his penis for a sexual purpose.

The twovideos were of him masturbating and sent in the context of a communication of him inviting her to give him a hand job, which is a sexualact. When M.S. appeared reluctant and scared, he encouraged her by sending her videos of giving himself a hand job. I find it was areasonable inference that his purpose in doing so was to assuage any concerns she had and to show her his penis. He did so overSnapchat from his account to her account intending that only she would be the recipient. To use the language in Berhe, the defendanttook the risk of allowing his penis to be seen by M.S, which in this case, was seen.

The mens rea requirement has been easily made out. [91] Count 6 alleges between April 1 to May 3, 2018, “did my means of telecommunication, communicate with a person (M.S.) forthe purpose of facilitating the commission of an offence under s.151 of the Criminal Code with respect to that person contrary tos.172.1(2) of the Criminal Code”. [92]

Section 172.1(2)(

b) of the Code provides: 172.1

(1) Every person commits an offence who, by a means of telecommunication, communicates with (

b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under

section 151 or 152, subsection 160(3) or 173(2) or

section 271, 272, 273 or 280 with respect to that person; [93] In R. v. Morrison, 2019 SCC 15 , [2019] SCJ No. 15, the Supreme Court explained this offence as a “child luring”offence which was created to combat the threat posed by adult predators who attempt to groom or lure children by electronic means. Atparagraphs 40 and 43, the Supreme Court said: 40 To achieve this purpose, s. 172.1 criminalizes conduct that precedes the commission, or even the attempted commission, of certaindesignated offences, most of which involve sexual exploitation of children.

It thereby creates an essentially inchoate offence -- that is, apreparatory crime that captures conduct intended to culminate in the commission of a completed offence: see Legare, at para. 25; R. v.Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 20, citing A. Ashworth, Principles of Criminal Law, (5th ed. 2006), at pp. 468-70. There is no requirement that the accused meet or even intend to meet with the other person with a view to committing any of thedesignated offences: see Legare, at para. 25.

The offence reflects Parliament's desire to "close the cyberspace door before the predatorgets in to prey": para. 25. 43 Fish J., for a unanimous Court, explained that the offence of child luring has three essential elements: (1) an intentionalcommunication by means of telecommunication; (2) with a person who is, or who the accused believes is, under the requisite age; (3) forthe purpose of facilitating the commission of a designated offence with respect to that person: para. 23. [94] In my view, there is no doubt that the defendant communicated by electronic means with M.S. through Snapchat, knew she was13 years old and did so for the sole purpose of facilitating the commission of the offence of sexual interference which is a designatedoffence.

I find the defendant sent her two videos of himself “jerking off” and “cuming” which I know is masturbating for the purpose ofshowing and encouraging M.S. how to commit the acts so she can commit them on him. After all, they were preceded with a request forboth a hand job and blowjob. I agree with the Crown that the only inference that arises is that the defendant wanted to commit these actswith M.S. (or have them committed on him) in the future. Having rejected the defendant’s denial of not sending her the videos, theevidence as a whole proves this offence beyond a reasonable doubt. E.

CONCLUSION [95] For all of the above reasons, I find the Crown has proven all the offences and convictions will be registered on all remainingcounts (1, 2, 3, 4 and 6). I will invite submissions on whether the Kienapple principle applies to stay any counts where a finding of guilthas been entered. [96] I would like to thank counsel for their written submissions. Released: August 7, 2019 _______________________________ Signed: “Mr. Justice F. Javed”